Clowns, Burqas and Other Terrors

Let me see if I get this right: Clowns are now a potential sign of a terroristic threat. Have we lost our minds? Or is it mere nerve that we are lacking?

Halloween is upon us. And that means costumes. For as long as I can remember, clown costumes have been a staple of the season.

Comes now word of a ban on clown costumes at local schools. And I was recently asked whether the police could lawfully arrest someone for wearing a clown costume or mask in public.

Even a prosecutor I spoke to seemed more than a little unhinged. When asked whether he thought a person could be arrested for wearing a clown mask, he replied: “It depends on whether he was breaching the peace.”

What’s the big deal?

Clowns are inherently ambiguous. Think of the Joker in Batman. While dressed in a disguise suggesting a child-like lark, the Joker is, in fact, pure malevolence. Clowns can mask evil with apparent innocence: We might be invited to suspend wariness only to be lured to destruction.

Reality can be like that. A candid look into the sheep’s mirror will reflect the lingering sneer of the wolf. Freud was right to refer to civilization as a necessary artifact harnessing universal aggression.

We’re all capable of evil. Indeed, the person who frightens me most is not the sinner; it is the saint who announces he would never sin.

In recent weeks, online reports suggest a person in a clown costume tried to lure children into the woods in South Carolina. Here in Connecticut, In­stagram posts with clown photos and menacing messages have school officials on edge for fear of clownish mayhem in a message to students.

Things took a peculiarly crazy turn in New Haven. A statement released by the school superintendent reads, in part: “New Haven Public Schools Director of Security Thaddeus Reddish asks that principals and building leaders prohibit clown costumes and any symbols of terror during this Halloween season.”

I can’t recall the last time a man or woman dressed as a clown marched into a public place and shot, stabbed or blew up strangers. But the news is filled with stories about terrorists killing in the name of Islam.

Should we forbid folks from wearing Islamic clothing, such as the hijab, a veil worn by women, or the burqa, a long outer garment, because Islamic fundamentalists kill in the name of Allah? This is no idle question, as residents of the East Rock section of New Haven will note: In the past year, the increasing presence of hijabs and burqas on the neighborhood streets yields images of a new world — Eastrockistan.

I doubt anyone would go so far as to suggest that folks cannot dress as they choose. Most Western nations do not regulate what folks can wear, so long as they wear enough to avoid charges of public indecency.

In the United States, we value freedom of expression, and part of how we express ourselves comes in the form of how we choose to appear before the world at large. “Apparel oft proclaims the man,” Shakespeare wrote, a sentiment echoed by none other than Mark Twain, who wrote, “Clothes make the man.”

So what about the desire of school administrators to regulate costumes? And what about police officers arresting folks for wearing masks in public?

Sadly, I think school officials may have the right to pass regulations about what can and cannot be worn to class. Schools are responsible, after all, for assuring the classrooms are orderly enough to educate students.

But even in schools, administrators must take pains to draw lines carefully to distinguish what is and is not permissible. Thus, no child can be prohibited from wearing clothing closely associated with his religious belief or ethnic heritage.

But suppose a student comes to class next week dressed as Osama bin Laden? Is that a “symbol of terror”? Does it depend on the student? A Saudi Arabian child can appear in such garb but not a descendant of the Pilgrims?

That is what the law calls a hard case.

The clown case is far easier. So long as there appear to be credible threats broadcast in the community about what men and women dressed as clowns might do, school officials are right to be wary. Clowns have become a credible threat of mayhem in that context.

The censor’s demon is whispering in my ear as I write: Don’t the threats of the Islamic State to bring destruction to the West operate in a similar manner, transforming the wearing of Islamic garb into a cause of alarm?

I can’t go that far, although I see no principled reason for not doing so.

The better course is simply to avoid hysteria and to regard content-based restrictions on costumes as ill-advised.

As to the wearing of masks or costumes in public, there is no criminal prohibition.

The closest the law comes to making such a thing a crime are the misdemeanor crimes of breach of the peace or disorderly conduct. Both criminalize conduct that results in “inconvenience, annoyance or alarm” to third parties.

Yes, you might be alarmed to see a clown walking your way on the street. But the law requires you to suck it up. The standard for determining whether you should be alarmed is what the law calls an “objective” standard. In other words, what would a reasonable person think upon seeing a clown? Your individual, subjective or idiosyncratic reaction typically isn’t enough.

We’ve yet to come to a point in this country where a broad public consensus supports the notion that wearing a mask in public is so wrong as to be criminally culpable.

But times change. Standards evolve. Several centuries ago, the good people of Salem, Massachusetts, killed folks suspected of being witches, acts we now deplore. We’re on the cusp of a whole new chapter of craziness just now. This prohibiting against clown costumes is just the tip of the iceberg.

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.